Saturday, 24 July 2021

Judicial Review and Courts Bill ~ Criminal Courts and Coroners

Crown Court Exeter
The Judicial Review and Courts Bill was published on Wednesday 21 July 2021.  The House of Commons is in summer recess from 22 July to 6 September. A further recess will take place for party conferences - 23 September to 18 October.

This post highlights some of the features of the Bill in so far as criminal justice and Coroners are concerned.

Judicial Review and Courts Bill - GOV.UK (

Explanatory Notes

: Criminal Justice :

Background - 

There is a considerable background to the contents of the Bill - (see the Explanatory Notes pages 10 and 11).

Two reviews of the efficiency of the criminal courts system are referred to. The 20 year-old Criminal Courts Review (Lord Justice Auld, 2001) and the Efficiency Review by Sir Brian Leveson (January 2015). Next is the 2016 consultation paper - Transforming our Justice System. Then there is the Prisons and Courts Bill 2017 which fell due to the general election of that year.

The Judicial Review and Courts Bill will complement new criminal court measures featured in the Police, Crime, Sentencing and Courts Bill as well as the judicial powers given to authorised court officers under the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.

It is also noted that the Government is investing over £1 billion to transform the courts and tribunals system and a further £142m of COVID-19 funding to upgrade court buildings so that they are digitally enabled. A great deal of store is being placed in a "new ground-breaking online digital end to end case management system" (the Common Platform) which will replace several legacy IT systems with a single system.

Categories of criminal case -

There are 3 categories of criminal case: 

Summary Only (i.e. should normally be heard in the Magistrates' Court), 

Triable Either-Way (TEW) - may be heard in the Magistrates' Court of Crown Court - an allocation decision is required but a defendant has a right to elect for trial by jury - this category of case includes a considerable number of serious offences,

Indictable Only (IO) - triable only in the Crown Court - covers the most serious offences such as murder, manslaughter

Nothing in the Bill alters the categories of case but procedures will be changed.

AOCSSP procedure (Clause 3) - 

Here is a new acronym - AOCSSP = Automatic Online Conviction and Standard Statutory Penalty.

The new procedure will apply to "certain specified summary only non-imprisonable offences" and it will enable those cases to take place entirely online without the involvement of a magistrate. Eligible offences will be specified in secondary legislation subject to affirmative approval by Parliament. We are told that "these will be the most straightforward of cases and the Government's intention is to initially extend this provision to travelling on a train or tram without a ticket and fishing with an unlicensed rod".

In recent times, we have seen offences against coronavirus secondary legislation subject to a fixed penalty notice system. It is not explained why such a system could not be applied to "without ticket" and "unlicensed rod" offences !

The AOCSSP goes beyond Single Justice Procedure whereby cases are dealt with "on the papers" by a single magistrate (with legal advisor).

Single Justice Procedure -

This scheme is somewhat controversial and was introduced by the Criminal Justice and Courts Act 2015. It has avoided the need for a bench of 3 magistrates to deal with often lengthy lists of straightforward routine cases.

Interestingly, the Bill will extend Single Justice Procedure to corporate defendants - (Clause 5).

Daily Lists of Single Justice Proecdure cases are published.

Clause 4 - Guilty plea in writing: extension to proceedings following police charge

At present, the Guilty Pleas in Writing procedure can only be applied to the prosecution of summary-only offences that have been initiated against a defendant in writing by a postal requisition or summons away from a police station. The Bill will enable prosecutors to apply the procedure for pleading guilty by post to the prosecution of a summary-only offence against a defendant who is of appropriate age that has been initiated by charging them in person at a police station and granting them police bail to appear at a magistrates’ court for a first hearing

Clause 6 - Written procedure for indicating plea and determining mode of trial: adults

The Bill's provisions are particularly convoluted - (see Explanatory Notes at pages 29 to 32). 

The Bill seeks to amend the law so that both plea before venue and the allocation decision for an adult prosecuted for an either-way offence can be conducted in writing or online without the need for a court hearing or the defendant's appearance in a Magistrates' Court.  Criminal Procedure Rules may provide for circumstances where this process must not be used for a case. Furthermore, it will not apply to cases that receive a prosecutor's notice under section 51B or 51C of the Crime and Disorder Act 1998

Even where a GUILTY plea is entered in writing or online it will be possible for the Magistrates' Court to send the case to the Crown Court for conviction and sentencing.

Given the serious nature of many either-way offences, this change of process has the appearance of diluting the open justice principle considerably. It will be interesting to see how this proceeds through Parliament and whether the relentless pursuit of supposed efficiency will prevail.

See also Clauses 7 to 9 for further provisions in this area.

Clause 10 - Sending cases to Crown Court for trial

It will become possible to send indictable cases to the Crown Court for trial without a first hearing in the Magistrates' Court. This is both in respect of offences that are only triable on indictment and those that are triable either way, but which have been allocated for trial in the Crown Court.

Clause 42 - local justice areas will be abolished 

For Magistrates, the implications are that their recruitment, training and management will be brought into line with the rest of the judiciary on a national basis in England and Wales.

There are many more provisions relating to criminal justice but the above are perhaps the more prominent changes.

: Coroners :

Although the Bill makes significant changes to the work of Coroners, it falls well short of the overall reform frequently called for - previous post 27 May on the Justice Committee Report. A particular criticism is that there is no appeal procedure - see this Parliamentary Research Briefing.

The reforms in the Bill include:

Allowing a Coroner to discontinue an investigation where the cause of death becomes clear. This may avoid a considerable number of post-morten examinations which are, of course, upsetting for families.

Allowing inquests in "non-contentious cases" to be held without a court hearing. The Explanatory Notes state that "this could be where there is no practical need or public interest to do so." 

To allow pre-inquest hearings and inquests to take place remotely - bringing Coroner's Courts in line with criminal courts. This measure will enable a Coroner to conduct inquests virtually without the need for the coroner or inquest jury to be physically present in the courtroom,

Disapplying the requirement for an inquest to be held with a jury where Covid-19 is suspected to be the cause of death. (Covid-19 is a notifiable disease). The rationale for this is the large number of cases in which juries would be required. It is stated that this will be a temporary provision to be reviewed after 2 years.

SEE INQUEST 15 September 2021 - Judicial Review and Courts Bill: call for action to ensure access to justice for bereaved people

24 July 2021

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